employment law: hiring and firing
DESCRIPTION
Stuart spoke at Job Skills - Employer Rights and Responsibilities 2013 Seminar.TRANSCRIPT
Job SkillsSeptember 19, 2013Turnberry Golf Course
Presented by
Stuart E. Rudner
Employment Law:Hiring & Firing
The Hiring Process
Dealing with publicly available information online
Courts recognizing Facebook and similar postings not necessarily “private”
Don’t demand access or password
Caution
Risk of inaccurate information Take everything with a grain of salt Risk of stumbling
on inappropriate information– Race– Age– Disability
Human Rights Code Every person who is an employee
has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of…
You don’t want to know more than you need to
Mitigating Risks
Have protocol for every applicant Screen candidates in consistent
manner Have non-decision maker filter out
inappropriate info Log reasons for not hiring
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AODA & Accommodation
Employees do not have to reveal need for accommodation in application process
Not “dishonest” or cause for dismissal
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AODA
Positive duty to accommodate in hiring process
Must advise applicants will accommodate
Must accommodate if requested Separate accommodation from hiring
decision if possible Even more critical to log reasons for
decision
Employment Agreements
Use them!
Do it properly– Before there’s already an agreement– With consideration– Explained and understood– Independent legal advice
Employment Agreements
Basic Checklist:– Duties (maintain flexibility)– Remuneration and benefits (maintain
flexibility)– Restrictive Covenants– Vacation– Termination– No conflicting obligations
Employment Agreements
Basic Checklist (cont’d):– Hours of work– Vacation / holidays– Dress code– Alcohol– Conflict of interest– Expenses– etc
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Termination Clauses
Enforceable if done properly Avoid uncertainty of “reasonable
notice” Reduce dismissal costs Don’t go below employment
standards Address benefits Use clear language
Policies to Protect the Employer
Protecting the OrganizationA. Have a policyB. Use clear and unambiguous languageC. Update the policy as technology
changesD. Publicize the policyE. Make employees aware of concernsF. Ensure supervisors and managers are
aware of the policy and how to monitor;G. Monitor behaviourH. Discipline violators
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Dismissals 2 types: With cause or
without cause
If with cause, no further obligation to employee
Otherwise, need to assess employee’s entitlements to
notice/pay in lieu/severance
No “near cause”
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Dismissals 2 types: With cause or
without cause
If with cause, no further obligation to employee
Otherwise, need to assess employee’s entitlements to
notice/pay in lieu/severance
No “near cause”
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Without Just Cause
Notice of Dismissal or Pay in Lieu
Two sources of entitlement– Employment Standards Act /
Canada Labour Code– Common Law
Can contract out of common law
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Common Law: The Length of Notice
Requirement: “reasonable” notice of dismissal
The Bardal Factors 1) Length of service2) Age3) Position / Character of Employment4) Availability of Similar Employment
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What is “reasonable”?
No “rule of thumb” or direct 1:1 relationship between years of service and months of reasonable notice
Beware the short-term employee Inducement
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The Changing Times
End of mandatory retirement, people working longer --> Wrongful dismissal claims by workers in 70s and 80s!
Recent decision:I do not think there is a place in this social reality for an automatic presumption that
persons should or would naturally retire on reaching senior age.
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The Changing Times
Di Tomaso v. Crown Metal Packaging Canada LP:
there is recent jurisprudence suggesting that, if anything,
(position/character of employment) is today a factor of declining relative
importance.
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Without Cause: Options
Working notice– must allow opportunity to
look for new employment Salary & benefit continuance Lump-sum Combination Dangers of failing to continue
benefits
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Just Cause: Performance Issues
Employer must:Set a clear, reasonable standardCommunicate expectationsMeasure the performanceTake appropriate action
–Warnings (verbal and written) – document everything!
–Counseling–Training
Allow reasonable time for improvement
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For Just Cause
Capital Punishment of Employment Law Employer must prove:
1. that the alleged misconduct took place, and
2. that the nature or degree of misconduct warranted dismissal, bearing in mind all relevant circumstances
Proportionality is guiding principle – “punishment must fit the crime”
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The Contextual Approach
Employer must consider all circumstances, not just alleged misconduct– Length of service– Disciplinary history– Nature of position
Same set of facts can yield different results
Can You Discipline for Off-Duty Conduct?
Generally, what you do on your time is your business
But if– The conduct renders the employee unable to
perform his duties satisfactorily.– The conduct interferes with the efficient
management of the operation or workforce.– The conduct leads to a refusal or reluctance of other
employees to work with him.– The conduct harms the general reputation of the
Employer, its product or its employees.
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The Importance of the Investigation
Investigate first Ensure fairness, objectivity,
thoroughness Give opportunity to respond Often, employee response is critical
factor in determining appropriate discipline
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Human Rights Claims
Cannot dismiss based upon protected ground
Caution when applying performance requirements
Even if tiny part of reason was protected ground despite other legitimate reasons
Potential for “general damages” plus damages for loss of income from date of dismissal to date of hearing
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Stuart E. Rudner
www.rudnermacdonald.com
Twitter: @CanadianHRLawLinkedIn: Connect with me and join the
Canadian HR Law GroupBlog: Canadian HR Law
http://www.hrreporter.com/blog/canadian-hr-law
Google+: Canadian Hr Law
Thank you